FORNEY v. UNITED STATES OF AMERICA

Filing 10

OPINION. Signed by Judge Noel L. Hillman on 4/21/2015. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Petitioner,
:
:
v.
:
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
___________________________________:
ALFONZO FORNEY,

Civ. No. 13-6239 (NLH)
OPINION

Petitioner Alfonzo Forney, an inmate currently confined at
Federal Correctional Institution McKean at Bradford,
Pennsylvania, has submitted a motion to vacate, set aside, or
correct his sentence pursuant 28 U.S.C. § 2255.

For the reasons

set forth below, the Court will deny the motion.

I.

BACKGROUND

In its Opinion on September 30, 2013, the Court of Appeals
for the Third Circuit sets forth a detailed procedural history
of this case.

In relevant part, it states that

[i]n 2011, Forney pleaded guilty to two counts of
uttering counterfeit obligations, in violation of 18
U.S.C. § 472, after he passed counterfeit bills at
three Atlantic City casinos, a Walgreens, and a
Walmart. He was sentenced in the District of New
Jersey to two concurrent terms of 24 months'
imprisonment followed by three years of supervised
release. Forney was released from prison on April 24,
2012, and was permitted to move to Brooklyn, New York
to live with his mother and brother.

About a month later, Forney's brother filed a
complaint with the New York City Police Department
alleging that Forney had threatened him and was in
possession of counterfeit currency. Forney's brother
turned over thirty counterfeit $20 bills and a
bleached, genuine $1 bill, telling the police that the
bills had come from Forney's bedroom. Forney was
arrested later that day by Officer Kevin DeLeon. Upon
being told that he was being charged with threatening
his brother and possessing counterfeit currency,
Forney stated: “I wasn't found in possession of United
States currency. You didn't find it on my person. My
brother is the only [one] who could have said
anything.” Forney denied that he had recently made
any counterfeit bills and claimed that the counterfeit
currency given to the police by his brother came from
a stash of counterfeit money from his previous case
that had never been recovered by the Secret Service or
his probation officer. He also stated: “When I have
money, I have money and when I don't, I mess around
with the counterfeit.” Forney was charged in state
court with one count of menacing and harassment, and
one count of forgery and possession of a forged
instrument. The state charges were eventually
adjourned in contemplation of dismissal.
Following Forney's arrest, the U.S. Probation Office
filed a Violation of Supervised Release Report,
alleging that Forney had violated his conditions of
release by committing another federal, state, or local
crime. The report listed two violations, one for each
of the New York charges. Forney contested the
violations.
The District Court held a revocation hearing on
November 27, 2012. The court heard from Officer
DeLeon, who testified to the statements made by Forney
after his arrest, and from U.S. Secret Service Agent
Michael Thomas, who testified to his analysis of the
counterfeit currency recovered in the case. At the
conclusion of this testimony, the District Court
dismissed the alleged violation for menacing and
harassment, concluding that there was insufficient
evidence to find that Forney had committed that crime.

The District Court reached the opposite conclusion,
however, with regard to the forgery and possession of
a forged instrument charges brought pursuant to N.Y.
Penal Law §§ 170.20 and 170.30. The Court stated that
a defendant commits a crime under these statutes “if,
with knowledge that the instrument is forged and with
intent to defraud, deceive or injure another, he
utters or possesses the forged instrument.” The Court
had no trouble concluding that Forney's statements to
Officer DeLeon established the possession and
knowledge elements of the crime, but admitted that it
“consider[ed] it a very close call” as to whether
Forney had the requisite intent to defraud or deceive.
Nevertheless, the Court found convincing Forney's
admission that he “mess[es] around with the
counterfeit” when he has no money. The Court viewed
that statement as “a sufficient admission or
confession that this stash was used or kept by him for
the purpose of using it when he needed it.”
Accordingly, the District Court found that Forney had
committed a Grade B violation of his supervised
release.
As a consequence of his violation and criminal
history, Forney's advisory United States Sentencing
Guidelines range was 12 to 18 months' imprisonment.
At sentencing, the District Court heard argument from
the Government and defense counsel before determining
that an 18–month sentence was appropriate. Because
Forney was serving two concurrent terms of supervised
release when the violation was committed, however, the
District Court then considered whether it should run
his sentences consecutively. Citing the “multiple and
flagrant breaches of trust that began almost
immediately upon [Forney's] release from
imprisonment,” the District Court determined that
consecutive 18–month sentences should be imposed, for
a total term of 36 months' imprisonment.
United States v. Forney, 537 F. App’x 114, 115-116 (3d Cir.
2013) (citations omitted).

Forney timely appealed, arguing that there was insufficient
evidence for the district court to conclude that he possessed
counterfeit currency with the requisite intent; and (2) that the
district court’s decision to impose consecutive sentences on him
was unreasonable.

On September 30, 2013, the Third Circuit

Court of Appeals affirmed the district court’s determination.
See Forney, 537 F. App’x 114.
Petitioner then brought this action pursuant to § 2255.
his Petition, he sets forth four grounds for relief.

In

As his

first ground for relief Petitioner argues, as he did on direct
appeal, that there was insufficient evidence for the district
court to find that he committed a new crime.

Grounds two and

three of the Petition assert that the district court erred in
failing to give “preclusive effect to suppression rulings” made
by a New York State court judge. (Pet’r’s Resp. 5, ECF No. 7).
Finally, Petitioner contends that he received ineffective
assistance of counsel.

II.

STANDARD OF REVIEW

Title 28 U.S.C. § 2255 provides, in pertinent part:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to
be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of
the United States, or that the court was without
jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by

law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate,
set aside or correct the sentence.
28 U.S.C. § 2255(a). See generally U.S. v. Thomas, 713 F.3d 165
(3d Cir. 2013) (detailing the legislative history of § 2255).
A criminal defendant bears the burden of establishing his
entitlement to § 2255 relief. See United States v. Davies, 394
F.3d 182, 189 (3d Cir. 2005).

Moreover, as a § 2255 motion to

vacate is a collateral attack on a sentence, a criminal
defendant “must clear a significantly higher hurdle than would
exist on direct appeal.” United States v. Frady, 456 U.S. 152,
166 (1982), cited in U.S. v. Travillion, 759 F.3d 281, 288 (3d
Cir. 2014).

In addition, a one-year limitations period applies

to § 2255 motions. See 28 U.S.C. § 2255(f).
Finally, this Court notes its duty to construe pro se
pleadings liberally. See United States v. Otero, 502 F.3d 331,
334 (3d Cir. 2007) (citing Haines v. Kerner, 404 U.S. 519, 520
(1972)).

III. DISCUSSION
As explained in detail below, the success or failure of
each of Petitioner’s grounds for relief is inextricably related
to the success or failure of another.

Thus, the Court will

address the grounds for relief not in the order presented in the

Petition, but in an order which resolves each ground most
efficiently and clearly.

A. Grounds Two and Three: The District Court Improperly
Considered Evidence that the New York State Court had
Suppressed
Petitioner asserts in Grounds Two and Three of his Petition
that the District Court was prohibited from considering
statements and evidence in the Supervised Release Revocation
Hearing because the Kings County Criminal Court judge “entered
an order suppressing all evidence as violative (and a violation)
of [Petitioner’s] Fourth Amendment Rights[.]” (Pet. 7, ECF No.
1).

Petitioner does not attach a copy of this Order to his

submissions.

Instead, he includes a transcript of unspecified

proceedings in which an unnamed judge (presumably Judge Green)
requests additional briefing from counsel on the issue of
whether evidence was found in violation of the Fourth Amendment.
No ruling on the issues is present in the transcript provided.
1. Procedural Default
As an initial matter, the Court notes that Petitioner did
not raise this issue on direct appeal. 1

1

Failure to do so

As noted above, on direct appeal Petitioner challenged: (1) the
sufficiency of the evidence; and (2) the reasonableness of the
sentence imposed by the district court.

constitutes procedural default. Bousley v. United States, 523
U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998).

“In most

circumstances, the doctrine of procedural default prohibits a
party from raising an argument on collateral review that was not
previously raised at trial or on direct appeal.” Neely v. U.S.,
Civ. No. 09-5831, 2010 WL 2950616 at *3 (D.N.J. July 22, 2010)
(citing United States v. Frady, 456 U.S. 152, 167–168, 102 S.Ct.
1584, 71 L.Ed.2d 816 (1982) (stating that in general, claims not
raised on direct appeal cannot be raised for the first time on
collateral review)).

“An exception to this rule exists only if

a petitioner can demonstrate (1) cause excusing his procedural
default, and (2) actual prejudice resulting from the errors of
which he complains.” Id.; see also Bousley, 523 U.S. 614.
Here, Petitioner does not make a showing of cause or actual
prejudice which prevented him from raising this claim on direct
appeal.

Thus, he has not satisfied the test to set aside his

procedural default and his claims regarding the district court’s
failure to adhere to the New York State judge’s rulings can be
denied on this basis alone.
However, the Court notes that Petitioner also asserts an
Ineffective Assistance of Counsel claim in his § 2255 Petition.
This Ineffective Assistance claim, although not explicitly
styled as such, could serve as cause to excuse Petitioner’s
procedural default.

Therefore this Court will, in an abundance

of caution, address Petitioner’s collateral estoppel and
preclusive effect claims on the merits. See Neely, 2010 WL
295616; Abreu v. U.S., Civ. No. 08-4742, 2009 WL 2634640 at *3
(D.N.J. Aug. 26, 2009).
2. Substantive Discussion
Petitioner argues that the district court should have given
preclusive effect to suppression rulings made by a New York
State judge.

Thus, Petitioner asserts that the sentencing court

improperly considered statements and evidence in the Violation
of Supervised Release Hearing.
Case law establishes that the Federal Full Faith and Credit
Statute, 28 U.S.C. § 1738, obliges federal courts to give the
same preclusive effect to a state-court judgment as would the
courts of the State rendering the judgment. See, e.g., McDonald
v. City of West Branch, Mich., 466 U.S. 284, 104 S.Ct. 1799
(1984); Migra v. Warren City School District Board of Education,
465 U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984);
Kremer v. Chemical Construction Corp., 456 U.S. 461, 466, 102
S.Ct. 1883, 1889, 72 L.Ed.2d 262 (1982).

In New York State, the

formal prerequisites for application of collateral estoppel are
“identity of parties; identity of issues; a final and valid
prior judgment; and a full and fair opportunity to litigate the
prior determination[.]”

People v. Aguilera, 82 N.Y.2d 23, 29

623 N.E.2d 519, 522 (N.Y. 1993) (citing People v. Goodman, 69

N.Y.2d 32, 38, 511 N.Y.S.2d 565, 503 N.E.2d 996 (N.Y. 1986)
(collecting cases)).

Additionally, New York State courts have

noted that, for reasons of public policy, the doctrine of
collateral estoppel is more sparingly applied in criminal cases
than in civil cases. See, e.g., People v. Trucchio, 159 Misc.2d
523, 605 N.Y.S.2d 649 (N.Y. Sup. Ct. 1993); Aguilera, 82 N.Y.2d
23, 623 N.E.2d 519; People v. Acevedo, 69 N.Y.2d 478, 485, 515
N.Y.S.2d 753, 508 N.E.2d 665 (N.Y. 1987); People v. Fagan, 66
N.Y.2d 815, 816, 498 N.Y.S.2d 335, 489 N.E.2d 222 (N.Y. 1985).
Applying these principles to the case presently before this
Court, it is clear that collateral estoppel or issue preclusion
is unavailable to Petitioner.

First, despite Petitioner’s

arguments to the contrary, the parties in the New York State
criminal court case were different from those in Petitioner’s
Violation of Supervised Release Hearing.

Significantly,

Respondent United States of America — the party against whom
Petitioner wishes to assert collateral estoppel in this case —
was not afforded a full and fair opportunity to litigate the
issue in the New York State case.
Additionally, Petitioner has not produced any valid, final
judgment suppressing the evidence.

At the most, Petitioner has

submitted transcripts which suggest that a state court judge was
contemplating a ruling suppressing the evidence.

Although the

record is not entirely clear, it is possible that the evidence

in question was obtained illegally and that this contributed to
the adjournment of charges against Petitioner.

Even assuming

this is the case, at the Violation of Supervised Release Hearing
counsel for Petitioner explained with respect to the New York
State criminal case that, “there is no finding, no judgment of
conviction order.” (Tr. 62, Nov. 27, 2012, ECF. No. 48).

Thus,

the dismissal of Petitioner’s state criminal proceedings
produced no valid and final judgment to which preclusive effect
can be given. See McGrath v. Gold, 36 N.Y.2d 406, 330 N.E.2d 35
(N.Y. 1975) (holding that the requisite finality was lacking, in
part because the dismissal was based upon a suppression order
which was interlocutory in nature); see also Singleton
Management, Inc. v. Compere, 243 A.D.2d 213, 673 N.Y.S.2d 381
(N.Y.A.D. 1998) (holding that preclusive effect will only be
given to matters “actually litigated and determined” in a prior
action).
Petitioner also contends that the law in New York State
clearly prohibits the use of evidence in parole revocation
hearings when that evidence has been suppressed in state
criminal court.

Petitioner does not cite to any specific case

in support of this argument, but states that there are “1,000’s”
of cases which stand for this proposition. (Pet’r’s Resp. 6, ECF
No. 7).

Additionally, Petitioner urges this Court to consult

“any New York Parole Attorney.” Id. at 5.

Petitioner’s reliance on New York State law and his
insistence that illegally obtained evidence may not be used in
parole revocation hearings is misplaced.

New York courts which

have addressed the judicially created rule proscribing the
introduction of illegally seized evidence, or the “exclusionary
rule,” have noted that “[f]ederal and state courts are
diametrically divided upon the issue of whether the exclusionary
rule is available.” People ex rel. Gueits v. Warden, George
Motchan Detention Center, No. 251314–12, 2013 WL 387987 at *3,
2013 N.Y. Slip Op. 50124 (N.Y. Sup. Ct. Jan. 31, 2013).

Thus,

although New York State law may apply the exclusionary rule in
parole revocation hearings, Petitioner is in federal custody and
the Revocation of Supervised Release Hearing which he challenges
by way of this Petition was a federal proceeding guided by
federal law.

It is well established that the federal

exclusionary rule does not bar the introduction at parole
revocation hearings of evidence seized in violation of parolees'
Fourth Amendment rights. Pennsylvania Bd. of Probation and
Parole v. Scott, 524 U.S. 357, 118 S.Ct. 2014 (1998).

The same

rule applies to revocations of supervised release. See United
States v. Maury, 530 F. App’x 205, 207 n.2 (3d Cir. 2013) (“We
evaluate revocation of supervised release the way we once
addressed revocation of parole.”); United States v. Huff, 703

F.3d 609, 612 (3d Cir. 2013); United States v. Barnhart, 980
F.2d 219, 222 (3d Cir. 1992).
Accordingly, even assuming that the evidence in question
was, in fact, obtained illegally, introduction of same at the
Revocation of Supervised Release Hearing was proper.

Therefore,

Petitioner is not entitled to § 2255 relief based on the
District Court’s consideration of the suppressed evidence and
Grounds Two and Three of the Petition are denied.

B. Ground Four: Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a
criminal defendant “shall enjoy the right ... to have the
Assistance of Counsel for his defence.” U.S. Const. amend. VI.
The right to counsel is “the right to effective assistance of
counsel.” McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90
S.Ct. 1441, 25 L.Ed.2d 763 (1970) (emphasis added) (citations
omitted), cited in Ross v. Varano, 712 F.3d 784, 797 (3d Cir.
2013).

This right exists at sentencing in both capital and non-

capital cases. See Lafler v. Cooper, 132 S.Ct. 1376, 1385–86,
182 L.Ed.2d 398 (2012) (collecting cases).

“Even though

sentencing does not concern the defendant's guilt or innocence,
ineffective assistance of counsel during a sentencing hearing
can result in Strickland prejudice because ‘any amount of
[additional] jail time has Sixth Amendment significance.’” Id.

at 1386 (quoting Glover v. United States, 531 U.S. 198, 203, 121
S.Ct. 696, 148 L.Ed.2d 604 (2001) (alteration in original)).
To prevail on a claim of ineffective assistance of counsel,
a habeas petitioner must show both that his counsel's
performance fell below an objective standard of reasonable
professional assistance and that there is a reasonable
probability that, but for counsel's unprofessional errors, the
outcome would have been different. Strickland v. Washington, 466
U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

With

respect to the “performance” prong, there is “a strong
presumption that counsel's conduct falls within the wide range
of reasonable professional assistance.” Strickland, 466 U.S. at
689.

With respect to the “prejudice” prong, a “reasonable

probability” of prejudice is “a probability sufficient to
undermine confidence in the outcome.” Strickland at 694.

Thus,

counsel's errors must have been “so serious as to deprive the
defendant of ... a trial whose result is reliable.” Id. at 687.
The performance and prejudice prongs of Strickland may be
addressed in either order, and “[i]f it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient
prejudice ... that course should be followed.” Id. at 697.
Here, Petitioner argues that his counsel “failed to
explicitly argue that the government failed to prove a new crime
was committed[.]” (Pet. 8, ECF No. 1).

Petitioner then

clarifies in his Reply submission that his counsel “failed to
research the law[,] . . . failed to investigate circumstances of
Petitioner’s [Violation of Supervised Release,] . . . [and was
ineffective] for not researching and looking into th[e]
suppression matter[.]” (Pet’r’s Resp. 2, 4, 7, ECF No. 7).
However, as explained above, there is no final order regarding
suppression of evidence to which the sentencing court could have
given preclusive effect.

Additionally, federal law controlled

the admissibility of evidence in Petitioner’s Violation of
Supervised Release Hearing.

Thus, even if counsel had

researched, investigated and argued in the manner desired by
Petitioner, the evidence and statements from the New York State
arrest still would have been considered at the federal Violation
of Supervised Release Hearing and the same sentence would have
been imposed.

Accordingly, Petitioner cannot establish the

“prejudice” prong of the Strickland standard and he is not
entitled to relief.

C. Ground One: Insufficient Evidence
In his first ground for relief, Petitioner challenges the
sufficiency of the evidence used to revoke his supervised
release.

This argument, however, has already been raised and

addressed on direct appeal.

It is well settled in the Third

Circuit that, in general, a petitioner cannot use 28 U.S.C. §

2255 to relitigate an issue already litigated on direct appeal.
See Sonneberg v. United States, Civ. No. 01–2067, 2003 WL
1798982, at *2 (3d Cir. 2003) (movant “may not relitigate issues
that were decided adversely to him on direct appeal by means of
a Section 2255 petition”); United States v. DeRewal, 10 F.3d
100, 105 n. 4 (3d Cir. 1993); U.S. v. Palumbo, 608 F.2d 529 (3d
Cir. 1979); see also Curry v. U.S., Civ. No. 11-5800, 2015 WL
733274 (D.N.J. Feb. 20, 2015); Pinkston v. U.S., Civ. No. 085493, 2009 WL 792283 (D.N.J. Mar. 23, 2009); Nunez v. U.S., Civ.
No. 07-1193, 2008 WL 2705016 (D.N.J. July 8, 2008).
Thus, absent certain circumstances, Petitioner is precluded
from relitigating the sufficiency of the evidence.

In Palumbo

the Third Circuit held that four exceptions to this general rule
are: “newly discovered evidence that could not reasonably have
been presented at the original trial, a change in applicable
law, incompetent prior representation by counsel, or other
circumstances indicating that an accused did not receive full
and fair consideration of his federal constitutional and
statutory claims.” Palumbo, 608 F.2d at 533 (citations omitted).
In this case, Petitioner admits that the argument raised in
Ground One was addressed on direct appeal and he acknowledges
that it can only be relitigated if one of the above-mentioned
Palumbo exceptions applies.

Petitioner asserts that the issue

should be relitigated because he received “incompetent prior

representation by counsel,” which is the fourth ground for
relief raised in his Petition and addressed above. 2

Thus,

Petitioner can only succeed on Ground One if he succeeds on his
Ineffective Assistance of Counsel claim.
As discussed above, Petitioner’s Ineffective Assistance
claim fails because he cannot establish that there is a
reasonable probability that, but for counsel's unprofessional
errors, the outcome would have been different. Strickland, 466
U.S. 668.

Because Petitioner’s Ineffective Assistance claim

fails, he does not fall into one of the exceptions to the
general rule against relitigation outlined in Palumbo, and he
cannot use this 28 U.S.C. § 2255 Petition to relitigate an
insufficient evidence argument which has already been addressed
and denied on direct appeal. See Forney, 537 F. App’x 114.

IV.

CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice
or judge issues a certificate of appealability, an appeal may
not be taken from a final order in a proceeding under 28 U.S.C.

2

In his Response submission, Petitioner also mentions the “other
circumstances” exception to the general rule against
relitigation via a 2255 motion. However, beyond this reference,
Petitioner does not indicate how “other circumstances [existed]
indicating that [he] did not receive full and fair consideration
of his federal constitutional and statutory claims.” Palumbo,
608 F.2d at 533 (internal citations omitted). Therefore,
Petitioner has failed to show that this exception should apply.

§ 2255.

A certificate of appealability may issue “only if the

applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).

“A petitioner

satisfies this standard by demonstrating that jurists of reason
could disagree with the district court's resolution of his
constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.” Miller–El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct.
1029, 154 L.Ed.2d 931 (2003) (citation omitted), cited in U.S.
v. Williams, 536 F. App’x 169, 171 (3d Cir. 2013).
Here, Petitioner has failed to make a substantial showing
of the denial of a constitutional right.

No certificate of

appealability shall issue.

V.

CONCLUSION

For the reasons set forth above, the Petition shall be
denied.

An appropriate Order follows.

___s/ Noel L. Hillman_____
NOEL L. HILLMAN
United States District Judge

Dated: April 21, 2015
At Camden, New Jersey